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ProtectMarriage.com, the very group that brought us Proposition 8, the 2008 constitutional ban on same sex marriage in California, is requesting that the California Supreme Court order county clerks to deny marriage licenses to same-sex couples. By issuing what he calls “gender-neutral marriage licenses,” Folsom attorney Andrew Pugno, who filed the petition on behalf of ProtectMarriage.com, is claiming that the state’s county clerks are now “lawlessly defying” Proposition 8.

By a vote of 4-3, California’s Supreme Court had ruled that gays had a state constitutional right to marry in 2008. Proposition 8 was passed later in the same year; the court then ruled in a 6-1 decision that it was a valid constitutional amendment.

Lawyers representing gay couples who fought Proposition 8 say that they had expected ProjectMarriage.com’s latest challenge to marriage equality and are prepared to respond to it. Simply put, a state court “may not interfere with a federal court’s decision,” the attorneys note.

ProtectMarriage.com’s latest 50-page challenge is centered on a long-running controversy about whether a 2010 decision by U.S. District Court Judge Vaughn to strike down Proposition 8 as unconstitutional should apply statewide.

As the Los Angeles Times points out, the federal suit against Proposition 8 was not filed as a class action suit; the California governor, attorney general and the clerks of Alameda and Los Angeles counties were specifically named as defendants. But Judge Walker’s injunction was also said to apply to “all persons under the control or supervision of defendants.” Accordingly, attorneys who have challenged Proposition 8 argue that state officials do indeed have authority over matters of marriage, including directing county clerks on how to handle marriage licenses.

ProjectMarriage.com is basing its latest challenge on this point, arguing that county clerks are not actually under the control of state officials because there is no law granting them supervisory powers. By its reasoning, the state Supreme Court should accordingly “act under a California constitutional provision that prohibits officials from refusing to enforce a law unless an appellate court has first determined the law is unconstitutional.”

Central to ProjectMarriage.com’s challenge is a 2011 order by U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt. The judge was on a panel that examined the ballot measure and observed that one lawyer contesting Proposition 8 had said in court that Judge Walker’s injunction “’determines only that Proposition 8 may not be enforced in two of California’s 58 counties.”

But as the Los Angeles Times explains, the “high-profile legal team that filed the federal lawsuit has attributed Reinhardt’s statement to a misunderstanding that occurred when the 9th Circuit was holding arguments on Proposition 8.” In a June 26th ruling, the Supreme Court said that Pugno “lacked the legal right” to appeal the now-retired Judge Walker’s injunction. That is, the 9th Circuit should not have even considered the case in the first place.

After the Supreme Court’s June 26th ruling and with a legal opinion from Atty. Gen. Kamala D. Harris in hand, California governor Jerry Brown said that he was “bound by the trial court injunction” to direct all county clerks to grant marriage licenses to same-sex couples.

A Last-Gasp Effort By Same-Sex Marriage Opponents

Legal experts describe ProjectMarriage.com’s challenge as an “extreme long shot.” For one thing, it is highly unlikely that a state court would intervene in a federal matter, UC Davis law professor Vikram Amar points out. ProjectMarriage.com could still try to file its case in a county Superior Court, but such is considered unlikely.

Now that the U.S. Supreme Court has ruled to return marriage equality to California and struck down DOMA, opponents of marriage equality are drawing on splitting hairs and grasping at possible legal technicalities to deny LGBT people of their rights. It is a sign of how increasingly desperate anti-marriage equality proponents have become.

So...with ALL the atrocities going on in the world today; pedophiles running amok, serial killers, rapists in the military, genocide etc. and "these" people have nothing better to do than make trouble for gay and lesbians.

Theodora, if CIVIL UNION is so great then why don't straight couples get them? Because civil-union is a 2nd class marriage and if a couple wants to commit themselves to being married why should they have to settle for less than full marriage. MARRIAGE it is and will be!!!!

Vesna, same-sex couples can LEGALLY be MARRIED!!! So saying "You are not married" is WRONG! Who cares what straight folks in the bible belt have to say about it? If YOU do then don't marry someone of the same sex : )

Actually, the term "marriage " does NOT have an entirely "clear history", as brought up ad infinitum in these threads.

Societies & institutions evolve, hopefully to become more equitable, compassionate, just. This is one of those changes - a good & kind one. Do loving couples want to get "civilly-partnered" or "married" ? Honestly, I don't see any reason to deny anyone the right to marry because of the bad tradition of prejudice against homosexuals based on a facile reading of often misinterpreted, mistranslated texts from a couple of thousand years ago.

If you don't like gay marriage don't marry someone of your own gender. Leave other people alone to live as they believe is right for them. Why do some people ram their intolerant views down our throats incessantly? I am so sick of it.